The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2015.
Findings Of Fact Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/ Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The subject property The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/ Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/ Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm. Applicable development regulations Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/ Rule 27F-8.03(5), Florida Administrative Code provides: Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat. Guidelines: * * * 5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . . Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. In areas where temporary removal of vegetation is necessary during construction, replanting of ground cover will be carried out as soon as possible. The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized add given due consideration in developing future land use regulations. Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible. * * * The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts. TERRESTRIAL WILDLIFE MANAGEMENT POLICIES In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species. * * * 7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . . It shall be unlawful and an offense against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department . . . * * * (c) Review and approval of development site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit. * * * Section 18-19 Same-Application . . . Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees An overall site plan of the land for which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above . . . shall be included. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct. * * * Section 18-21. Same - Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . . Areas of concern Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/ At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides: No building or structure shall be erected on a parcel of land which does not abut a public or private road having a minimum width of fifteen (15) feet. The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.
